Fate Of Baby Emily

Tied To 1989 Ruling

State Supreme Court Likely To Get Case

A 22-month-old girl's future depends on how courts interpret a 1989 Florida Supreme Court decision that describes what it takes to be a dad to a child who isn't yet born.

So far, the courts have not reached much agreement.

Palm Beach County Circuit Court Judge Gary Vonhof reversed his own rulings twice before deciding in September that Baby Emily's father, Gary Bjorklund of Pompano Beach, had abandoned his parental rights. Vonhof said Bjorklund did not do enough to support Emily and the birth mother, Linda Benco of Boca Raton, financially and emotionally during the pregnancy.

Vonhof completed Emily's adoption by Stephen and Angel Welsh of Plantation. The decision stood until last month, when the 4th District Court of Appeal nullified the adoption and said Bjorklund did not abandon his rights. The court said he had provided adequate financial support and contributed more than half the money to their joint living expenses during the first six months of Benco's pregnancy.

The appeals court ruling was a 2-1 decision, but even the majority seemed uncomfortable with Emily being taken from the only home she had known.

"In short, even when everything has been done with scrupulous exactitude throughout the adoption proceedings, the best interests of the child are simply unknowable," the court's majority opinion said. "It is primarily for that reason that we have laws to govern judges in adoptions, and not their hearts or emotions."

The appeals court decision sided with Bjorklund, which his attorney said was unusual.

"Birth fathers generally get the short end," attorney Steve Pesso said. "The adoption attorneys generally don't have much use for them."

The case has drawn a lot of attention because of Bjorklund's past, though the courts have said that the case has nothing to do with Bjorklund's fitness as a parent.

Bjorklund was convicted of rape in 1977 and served three years in prison; he was acquitted of a second rape in the 1980s. A former girlfriend also testified in the adoption case that Bjorklund held a machete to her throat and attempted to rape her. Bjorklund denies her charges.

What the adoption battle has come down to is a 1989 state Supreme Court decision known as Doe, which says that a birth father does not have a constitutional right to raise his child or block an adoption if it can be shown that he abandoned the baby before it was born.

"Because prenatal care of the pregnant mother and unborn child is critical to the well-being of the child and of society, the biological father, wed or unwed, has a responsibility to provide support during the pre-birth period," the court's majority opinion said.

In the case, the court said that because the father had failed to provide "meaningful emotional or financial support" to the unwed mother, he abandoned his parental rights.

But faced with that state Supreme Court ruling, judges still aren't in agreement on whether Bjorklund did enough. It's almost certain that the state Supreme Court will be asked to review Emily's case.

The appeals court majority opinion said Bjorklund's contribution to the joint living expenses constituted adequate financial support. A dissenting judge said the support just continued what was provided before the pregnancy and did not demonstrate any desire by Bjorklund to assume parental duties.

The appeals court majority opinion said emotional support was too vague a standard without showing how it caused direct physical injury to the unborn child. But the dissenting judge said abuse and actions that adversely affect the well-being of the expectant mother could be considered.

The Welshes' attorney said she thinks the dissenting judge - and not the two-judge majority - read the law right.

"Doe clearly said the man's conduct during the pregnany is part and parcel of abandonment," attorney Charlotte Danciu said. "That man didn't do anything for that woman other than spit on her."

The battle is not likely to end in the state court system. Both sides have indicated that they would appeal to federal courts if they lose their case. Bjorklund's attorney said his client did provide the support required in the Doe case, but he said Doe restricts fathers too much.

Bjorklund's rights were first terminated before Emily was born, while state law prohibits a woman from officially giving her child up for adoption until after it is born.

"It imposes a much higher standard on fathers than it does on mothers during the pregnancy," Pesso said. "I argued that Doe violates the equal protection rights of fathers."

Linda McIntyre, a Coral Springs lawyer who specializes in adoptions, said the standard is justified. Otherwise, a father could run off during the pregnancy and stake his claim at the birth - despite the wishes of the women who carried the child to term.

"The responsibilities that the father has are absolutely paramount, particularly during pregnancy," McIntyre said.